Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 03, 2023
CASE NO(S).: OLT-22-004863
PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1997, c.P. 13, as amended
Applicant and Appellant: Edward Fajardo
Subject: Minor Variance
Description: To allow conversion of single-family dwelling to duplex
Reference Number: A-133/22
Property Address: 17 Prestwick Avenue
Municipality/UT: St. Catharines/Niagara
OLT Case No.: OLT-22-004863
OLT Lead Case No.: OLT-22-004863
OLT Case Name: Fajardo v. St. Catharines (City)
Heard: April 5, 2023 by Video Hearing
APPEARANCES:
| Parties | Representative |
|---|---|
| Edward Fajardo | Ronald De Coteau |
| Valerie Valencia-Fajardo |
DECISION DELIVERED BY P. TOmilin AND W. DANIEL BEST and order of the Tribunal
INTRODUCTION
1This was a hearing of the appeal by Edward Fajardo and Valerie Valencia-Fajardo (“Applicants” / “Appellants”) against the decision of the City of St. Catharines (“City”) Committee of Adjustment (“COA”) to deny an application for a Minor Variance (“MV”). The Applicants are seeking relief from the Zoning By-law No. 2013-283 (“ZBL”), as amended, concerning 17 Prestwick Avenue (“subject property” / “subject site”) to allow for the reduction of the minimum lot area and to increase the overall parking area coverage in order to convert the existing dwelling into a duplex.
2The subject property is located on the west side of Prestwick Avenue, west of Hartzel Road and north of Lincoln Avenue. The immediate neighbourhood is characterized by detached dwellings, and the subject property is surrounded by residential dwellings to the north, east and south, and greenspace (Garden City Golf Course) to the west.
3The subject lands are designated 'Neighbourhood Residential' on Schedule D1 of the Garden City Plan and further designated 'Low Density Residential' on Schedule E9. This designation permits a range of low-density housing types, including detached dwellings and duplex dwellings at a density generally ranging between 20 to 32 units per hectare (“ha”).
4The Subject Site is zoned Low Density Residential - Traditional Neighbourhood (“R2”). The R2 zone permits a variety of low-density residential uses including detached dwellings and duplex dwellings subject to the provisions of the ZBL.
STATUS REQUEST
5Prior to the hearing, the Tribunal received a request for Participant Status from Kevin Bland and Glenn and Luanne Williams. In granting those requests, the Tribunal acknowledges the collective concerns of those individuals.
THE DEVELOPMENT PROPOSAL
6The Appellants propose to convert the existing dwelling into a duplex. The requirement for a duplex dwelling is to have side by side parking. The driveway of the subject property is not wide enough to accommodate two parking spaces side by side. And, as such, the Appellants applied for a MV seeking to allow parking vehicles in the backyard. The required variances are:
| Variance | Provision | Required | Proposed |
|---|---|---|---|
| 1 | Minimum Lot Area | 560 m2 | 436.89 m2 |
| 2 | Maximum Overall Parking Area Coverage | 20% | 35.8% |
LEGISLATIVE FRAMEWORK
7An appeal pursuant to s. 45 of the Planning Act (“Act”) is a hearing de novo and the Appellant bears the onus to demonstrate to the Tribunal that the four tests set out under s. 45(1) have been met. The four tests are:
a) maintains the general intent and purpose of the official plan;
b) maintains the general intent and purpose of the zoning by-law;
c) be desirable for the appropriate development or use of the land, building or structure; and,
d) be minor in nature.
8In addition to the four tests, the Tribunal must have regard to the matters of the provincial interests as set out in s. 2 of the Act, and to the decision of the approval authority under s. 2.1 of the Act.
HEARING
9Prior to the hearing, the City informed the Tribunal that they will not be seeking party status for this matter and will not be participating in the proceedings.
10The Applicants were represented by Ronald De Coteau. Mr. De Coteau wanted to both represent the Applicants and to provide expert opinion evidence. However, the Tribunal does not allow an individual to act as both a representative and witness. Thus, Mr. De Coteau decided to continue to act in the role of the representative of his clients. He did not present any planning or engineering evidence or call any witnesses.
11Mr. De Coteau presented to the Tribunal several photographs and explained that the Appellants spent a significant amount of money to renovate the dwelling.
ANALYSIS AND FINDINGS
12The only planning evidence before the Tribunal is the Technical Report from the City’s Planning and Building Services (Exhibit 2).
13The City’s Planning Staff is of the opinion that the conversion of the detached dwelling into a duplex dwelling will result in an excessive density of 45.87 units per ha which is not in keeping with the Low-Density Residential policies and the intent of the Official Plan (“OP”). The proposed parking in the backyard may detract from proper drainage and stormwater management and through the use of the rear yard for parking, diminish the usability of the rear yard for outdoor amenity space, and have the potential to negatively impact the surrounding properties by diminishing the use and enjoyment of their backyards. In addition to that, the proposed increase in parking surface area could potentially create issues with stormwater management, and generally incompatibility with neighbouring uses. The Planning staff is of the opinion that the proposed MV are not desirable, does not meet the intent of the OP, does not maintain the intent and purpose of the ZBL.
14The Staff report indicated:
a more appropriate and desirable use of the lands is to consider the conversion of the basement to an interior Accessory Dwelling Unit (“ADU”) in accordance with s. 2.2.1. of the ZBL. ADUs are a permitted use in the R2 Zone, have no lot size requirements, are not calculated as part of the density, and are also limited in size and function in relation to the primary dwelling unit. Further, tandem parking is permitted to provide the required spaces for the ADU and the principal dwelling unit.
CONCLUSION
15The Tribunal has taken into the consideration the COA decision and the Staff Report. This hearing was a hearing de novo of the MV application. The Appellants did not tender any land use planning evidence to counter the evidence provided by the City’s Staff Report. The Tribunal finds the uncontested evidence of the City’s Planning and Building Services Staff to be persuasive in demonstrating that the MV application does not comply with the criteria established in s. 45(1) of the Act.
ORDER
16THE TRIBUNAL ORDERS that the appeal is dismissed.
“P. Tomilin”
P. TOMILIN
MEMBER
“W. Daniel Best”
W. DANIEL BEST
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.